Rule 12(b)(2) provides that motions challenging an indictment based on the indictment's purported failure to charge an offense "shall be noticed by the court at any time during the pendency of the proceedings." The "pendency of the proceedings" for purposes of Rule 12(b)(2) concludes upon the completion of a defendant's direct appeal. See United States v. Wolff, 241 F.3d 1055, 1056 (8th Cir. 2001) (holding that, after final judgment was entered and defendant did not file a direct appeal, the proceedings were no longer pending under Rule 12(b)(2)); Rice v. United States, 132 F. Supp.2d 162, 163 (S.D.N.Y. 2001) (holding proceedings no longer pending for Rule 12(b)(2) purposes after conviction affirmed on appeal). Defendant's direct appeal concluded in 1994.

A petitioner's criminal proceedings are no longer pending if "[petitioner has been tried, convicted and has had his conviction affirmed on appeal." Rice v. United States, 132 F.Supp.2d 162, 163 (S.D.N.Y. 2001).

United States v. Baptiste Calixce, 20 Fed.Appx. 8, 10-11 (1st Cir. 2001) (denying defendant's motion under Federal Rule of Criminal Procedure 12(b)(3)(B) when he did not plead to a quantity of drugs used as the basis for his sentence until after the pendency of his case had expired).See also United States v. Wolff, 241 F.3d 1055, 1057 (8th Cir. 2001); Rice v. United States, 132 F.Supp.2d 162, 163 (S.D.N.Y. 2001). The First Circuit has noted that the proper mechanism for relief in this scenario is a direct appeal; if the direct appeal is unsuccessful, then the defendant must file a habeas motion under 28 U.S.C. § 2255.